HASANKHAN ALAMKHAN Vs. ABDULLA AHMEDALI CHHATRIWALA AND ORS

JUDGEMENT

(1.) THIS writ petition is preferred under Article 227 of the Constitution of India, whereby challenge is made to the Order dated 7th February 2012 passed below Application Exh. 174 in HRP Suit No. 488 of 2005 by the learned Judge, Small Cause Court, Ahmedabad, in the following factual background.

(2.) AN HRP suit is preferred by the respondent no.1 -original plaintiff seeking eviction of the suit premises on the ground of personal requirement and alleged sub -letting of the suit premises. Evidence of the present petitioner [defendant no.1] was completed on 11th February 2011 and thereafter advocate for the plaintiff also had sufficient opportunity to cross examine the petitioner and his witnesses. The original plaintiff [respondent no.1 herein] gave an application Exh. 174 under Order 18 Rule 17 CPC inter alia urging for witness summons on the ground that the some of the documents which have been produced in the deposition of petitioner herein have been exhibited vide Exh. 139 to 168 and these documents were produced after evidence was completed, there was necessity for recalling the witnesses.

(3.) IT is urged by learned advocate for the petitioner that the order passed by the learned Judge, Small Cause Court dated 7th February 2012 allowing such application is a jurisdictional error. He relied upon decision of the Apex Court reported in Vadiraj Naggappa Vernekar vs. Sharad Chand Prabhakar Gogate, 2009 4 SCC 410 to contend that witnesses cannot be recalled for filling up lacuna in evidence discovered on cross examination, as this provision is not intended for filling up omissions in the evidence. Learned advocate also urged that interest of petitioner, as a defendant [tenant], could be materially prejudiced if this order is allowed.